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Thread: Multiple CWA Section 404 permits

  1. #1
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    Multiple CWA Section 404 permits

    We are looking for examples of projects that have obtained multiple CWA Section 404 permits. Specifically, we would like to find other projects that have been built in phases and have obtained multiple 404 permits for those phases and how the projects documented NEPA compliance (single vs. multiple NEPA documents). However, we are also interested in examples of any projects that have obtained multiple 404 permits and how the issue of “independent utility” in the eyes of USACE was addressed.

  2. #2
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    Applicability

    33 CFR 330.6
    (c) Multiple use of nationwide permits.
    Two or more different NWPs can be combined to authorize a ‘‘single and complete project’’ as defined at 33 CFR 330.2(i). However, the same NWP cannot be used more than once for a single
    and complete project.
    (d) Combining nationwide permits with individual permits. Subject to the following qualifications, portions of a larger project may proceed under the authority of the NWPs while the DE evaluates an individual permit application for other portions of the same project, but only if the portions of the project qualifying for NWP authorization would have independent utility and are able to function or meet their purpose independent of the total project. When the functioning or usefulness of a portion of the total project qualifying for an NWP is dependent on the remainder of the project, such that its construction and use would not be fully justified even if the Corps were to deny the individual permit, the NWP does not apply and all portions of the project must be evaluated as part of the individual permit process.
    (1) When a portion of a larger project is authorized to proceed under an NWP, it is with the understanding that its construction will in no way prejudice the decision on the individual permit for the rest of the project. Furthermore, the individual permit documentation must include an analysis of the impacts of the entire project, including related activities authorized by NWP.

    33 CFR 330.2(i)

    Single and complete project means the total project proposed or accomplished by one owner/developer or partnership or other association of owners/developers. For example, if construction of a residential development affects several different areas of a headwater or isolated water, or several different headwaters or isolated waters, the cumulative total of all filled areas should be the basis for deciding whether or not the project will be covered by an NWP. For linear projects, the "single and complete project" (i.e. single and complete crossing) will apply to each crossing of a separate water of the United States (i.e. single waterbody) at that location; except that for linear projects crossing a single waterbody several times at separate and distant locations, each crossing is considered a single and complete project. However, individual channels in a braided stream or river, or individual arms of a large, irregularly-shaped wetland or lake, etc., are not separate waterbodies.

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